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July 24, 1990

DEBRA KIRBY and JOHN DOE, unknown Chicago Police Officer, Defendants

The opinion of the court was delivered by: DUFF


 Nancine Davis filed a four-count complaint in the Circuit Court of Cook County, Illinois, seeking relief from Officers Debra Kirby and her unknown partner John Doe, both of the Chicago Police Department. Ms. Davis alleged that Officers Kirby and Doe unlawfully detained her in violation of her Fourth Amendment rights and falsely imprisoned her. Officer Kirby removed Ms. Davis's complaint to this court under 28 U.S.C. § 1441(b) (1982) on the grounds that Ms. Davis could have brought her Fourth Amendment claim under 42 U.S.C. § 1983 (1982), and that this court may entertain § 1983 suits under 28 U.S.C. § 1331. Officer Kirby now asks this court to dismiss Counts 1-2 of Ms. Davis's complaint, both of which are against her alone, under Rule 12(b)(6), Fed.R.Civ.Pro., for failing to state a claim upon which this court may grant relief. Those counts brought against her unknown and unserved partner, John Doe, are not implicated by Officer Kirby's motion and will not be addressed here.

 Officer Kirby correctly observes that Ms. Davis cannot avail herself of a direct cause of action under the Fourth Amendment, as she seems to have claimed.*Rather, Ms. Davis must take advantage of the federally enacted statutory mechanism for redressing deprivations of federal rights, 42 U.S.C. § 1983 (1982). Officer Kirby questions whether Ms. Davis sufficiently alleges two elements of a § 1983 claim: (1) a deprivation of federal constitutional or statutory right (2) caused by a party acting under "color of state law." Gomez v. Toledo, 446 U.S. 635, 638, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980).


 The underlying facts are not in dispute, as this is a motion to dismiss. On August 19, 1989, Ms. Davis and her companion Christine Hart were exiting a car in front of Ms. Davis's apartment in Blue Island, Illinois. Ms. Davis' fiancee, William Reed, and Robert Hart remained inside the car. At that moment Officers Kirby and Doe pulled up in their squad car. Although it is unclear what was said, the officers apparently informed the four that their car was reported as stolen. One of the four informed the officers that the car had been rented the previous day and that the rental agreement was up in Ms. Davis's apartment.

 Ms. Davis went to her apartment and returned with the rental agreement. At that point the Blue Island police arrived. They informed Officers Kirby and Doe that according to their computer records, the car was not listed as stolen. Kirby and Doe maintained otherwise. Ms. Davis suggested that someone could call the car rental agency to verify the status of the car. Ms. Davis alleges that Officer Kirby told her to "shut up" and repeatedly stated to Ms. Davis, "Do you understand me or would we all have to go to the station?" Another officer, however, agreed with Ms. Davis.

 Officers Kirby and Doe accompanied Ms. Davis to her apartment. Ms. Davis dialed the telephone number and handed the receiver to Officer Kirby. Ms. Davis picked up the extension and apparently Officer Kirby told her to hang up. Ms. Davis told Officer Kirby that she wanted to know what was being said to and by the rental agent. The agent asked for Ms. Davis' phone number, which she gave. Officer Kirby told Ms. Davis to "hang up the phone or she was going to take her in." Davis replied that she did not want to hang up the telephone and that it did not matter who gave the telephone number to the agent as long as the matter was straightened out. In response, Officer Kirby grabbed the phone out of Ms. Davis' hand and hung up without confirming any of the information Ms. Davis provided about the rental car.

 Officer Kirby told Ms. Davis, "Get going you smart bitch, now you're going in." Kirby and Doe took Davis to the Fifth District station in Chicago and left her in a room by herself for a period of time. Ms. Davis's complaint reveals nothing more as to what happened at the police station other than that she was told to sign a form at the front desk with Officer Kirby present.



 A. Violation of Federal Right

 The first issue is whether Ms. Davis sufficiently alleges that Officer Kirby deprived her of a federal right. Ms. Davis suggests that Officer Kirby violated the Fourth Amendment by arresting her without probable cause. Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1970), and Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d 1 (1985), make clear that "whenever an officer restrains the freedom of a person to walk away, he has seized that person" within the meaning of the Fourth Amendment. In Dunaway, the Court held that acts similar to those alleged in this case amounted to a seizure under the Fourth Amendment:

[Plaintiff] was taken from a neighbor's home to a police car, transported to a police station and placed in an interrogation room. He was never informed that he was "free to go"; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an "arrest" under state law. The mere facts that petitioner was not told he was under arrest, was not "booked," and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, obviously do not make ...

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